Guidry v. Wells Fargo N.A.
MEMORANDUM OPINION AND ORDER granting in part and denying in part 16 MOTION to Dismiss 1 Complaint, and Memorandum of Law in Support. Stay lifted. Plaintiffs' wrongful foreclosure claim and requests for declaratory and injunctive relief are dismissed without prejudice. (Stay lifted. Discovery due by 4/14/2017. Joint Pretrial Order due by 5/5/2017. Docket Call set for 5/12/2017 at 03:00 PM in Courtroom 9B before Judge Sim Lake) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
January 04, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CHEJUANA GUIDRY and WARWICK
WELLS FARGO BANK, N.A.,
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-2618
MEMORANDUM OPINION AND ORDER
Pending before the court is Defendant's Motion to Dismiss and
Memorandum of Law in Support
("Motion to Dismiss")
Plaintiff has not responded to Defendant's Motion to
Dismiss, and the motion is therefore treated as unopposed. 1
failure to oppose the motion is not in itself grounds for granting
Servicios Azucareros de Venezuela, C.A. v. John Deere
702 F.3d 794,
must assess the legal sufficiency of the complaint to determine
whether dismissal is warranted.
the merits of
the Motion to Dismiss are discussed below.
See Local Rules of the United States District Court for the
Southern District of Texas, Rule 7.3 ("Opposed motions will be
submitted to the judge 21 days from filing without notice from the
clerk and without appearance by counsel.") and Rule 7.4 ("Failure
to respond will be taken as a representation of no opposition.").
Factual and Procedural Background
Plaintiffs Chejuana and Warwick Guidry allege 2 that in April
of 2006 Plaintiff 3 obtained a mortgage loan from Wells Fargo Bank,
secured by Plaintiff's principal residence
Plaintiff defaulted on the note in the fall of
Plaintiff applied for a loan modification under the Home
Affordable Mortgage Program ( "HAMP") , believing that doing so would
forestall foreclosure while the application was pending.
applications and submitted supplemental income documentation at
In May of 2013 Defendant notified Plaintiff that a foreclosure
sale would take place on June 4,
Defendant continued to
Plaintiff received another notice of foreclosure sale
on July 15, 2013.
government-sponsored HOPE hotline.
told that no
foreclosure sale would occur until her modification application was
Factual allegations are taken from Plaintiffs' Original
Complaint & Application for Injunctive Relief
Complaint"), Docket Entry No. 1, pp. 2-3 ~ 6.
Plaintiffs' Complaint uses the singular "Plaintiff" and
plural "Plaintiffs" interchangeably without explanation. The court
attempts to track the pleadings for consistency where doing so does
not introduce confusion.
either granted or denied.
Defendant foreclosed on the Property on
August 6, 2013, at a non-judicial foreclosure sale for $10.00.
Plaintiff alleges claims for breach of contract, promissory
declaratory and injunctive relief and attorney's fees.
moves to dismiss all claims for failure to state a claim upon which
Each claim will be analyzed under the standard of review
set forth below.
Under the Federal Rules of Civil Procedure a pleading must
contain "a short and plain statement of the claim showing that the
pleader is entitled to relief."
8 (a) (2).
plaintiff's pleading must provide the grounds of his entitlement to
relief, and "a formulaic recitation of the elements of a cause of
action will not do.
Bell Atlantic Corp. v. Twombly,
'further factual enhancement'" or "[t] hreadbare recitals of the
statements," do not suffice.
1937, 1949 (2009).
See Ashcroft v.
"[C]onclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to prevent a
motion to dismiss."
Fernandez-Montes v. Allied Pilots Ass'n, 987
claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged."
A Rule 12(b) (6)
Iqbal, 129 S. Ct. at 1949.
motion tests the formal sufficiency of the
complaint because it fails to state a legally cognizable claim."
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert.
denied sub nom. Cloud v. United States, 122 S. Ct. 2665 (2002).
defeat a motion to dismiss, a plaintiff must plead "enough facts to
state a claim to relief that is plausible on its face."
127 S. Ct. at 1974.
The court does not "strain to find inferences
favorable to the plaintiffs" or "accept conclusory allegations,
unwarranted deductions, or legal conclusions."
Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir.
(internal quotation marks and citations omitted).
are required to dismiss, pursuant to [Rule 12(b) (6)], claims based
on invalid legal theories, even though they may be otherwise wellpleaded."
State Farm Fire and Casualty Insurance Co.
(Texas), 605 F. Supp. 2d 811, 820 (W.D. Tex. 2009)
v. Williams, 109 S. Ct. 1827, 1832 (1989)).
Breach of Contract
"Under Texas law, the elements of a breach of contract claim
are (1) the existence of a valid contract;
(2) performance by the
(4) damages sustained by the plaintiff as a result of the breach."
453, 465 (5th Cir. 2003)
Plaintiff's claim is based on Defendant's alleged failure to
perform under the "agreement based on the modification application."
Plaintiff references the following language in the letters from
Wells Fargo dated October 31, 2012, and November 30, 2012:
We' 11 continue to work with you to help you avoid a
foreclosure sale. If your mortgage has not been referred
to foreclosure while we are working with you and
reviewing your documents, you will not be referred to
foreclosure while the application is pending. If your
mortgage has been referred to foreclosure, if allowed by
state law and/or investor guidelines, your home will not
be sold at a foreclosure sale.
Docket Entry No.
Plaintiff alleges that she performed under the contract by pursuing
opportunities to pursue other forms of mitigation, as a result.
Defendant argues that (1) Plaintiff's claim fails because she
was in breach of the Deed of Trust or the Note,
(2) Plaintiff fails
to identify the provisions of the contract that were allegedly
breached, and (3) that Plaintiff's claims are barred by the statute
Defendant's arguments that no valid contract existed
fail to address the fact that Plaintiff's claim is predicated on a
separate agreement, containing the specific language cited above,
and made in writing in the above-referenced letters.
reasonable inferences in her favor, Plaintiff has stated a facially
plausible claim to relief for breach of contract.
To state a
claim for promissory estoppel,
plead (1) a promise; (2) foreseeability that plaintiffs would rely
on the promise; and (3)
substantial reliance to their detriment.
102 S.W.3d 675,
2003) (citing English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983)).
is an alternative
Carrillo v. Bank of America, N.A., Civil Action No. H-122013 WL 1558320, at *8
(S.D. Tex. April 11, 2013)
987 S.W.2d 138,
does not create a contract where none existed before,
prevents a party from insisting upon his strict legal rights when
it would be unjust to allow him to enforce them."
Ford v. City
Phillips Petroleum Co., 492 S.W.2d 934, 937 (Tex. 1972)).
mitigation options like short sale, deed in lieu of foreclosure, or
alternative financing while [awaiting] the decision from the Bank
on the modification application." 4
Plaintiffs' Complaint, Docket Entry No. 1, p. 5
Defendant argues that the alleged promise was not sufficiently
that Plaintiffs fail
to show reasonable or justified
reliance, and that Plaintiffs do not show that they did anything in
reliance on the alleged promise other than not taking legal or
other action to try to preclude foreclosure.
Defendant has not
established that the promise not to foreclose while the application
was pending was indefinite as a matter of law.
Nor does Defendant
Finally, Defendant does not cite any authority for
the proposition that foregoing action to prevent foreclosure is not
sufficient for detrimental reliance.
Defendant's statute of frauds
argument fails insofar as Plaintiffs' rely on Defendant's written
Plaintiff's estoppel claim therefore survives
Motion to Dismiss.
The three elements of wrongful foreclosure are:
sale proceedings i
"(1) a defect
selling pricei and (3) a causal connection between the defect and
the grossly inadequate selling price."
Charter National Bank--
Houston v. Stevens, 781 S.W.2d 368, 371 (Tex. App. -- Houston [14th
1989, writ denied)
See Barcenas v.
Action No. H-12-2466,
Plaintiffs cannot maintain an action
in possession of
Fed. Home Loan Mortgage Corp.,
2013 WL 286250, at *7
Plaintiffs allege that they "currently
possess" the Property and have provided no subsequent information
foreclosure claim, and this claim will be dismissed.
Declaratory and Injunctive Relief
uncontested that the foreclosure sale is complete.
be entitled to have a
"(I]n order to
sale set aside
plaintiff must actually tender -- not just offer to tender -- the
full amount owed on the note."
Hill v. Wells Fargo Bank, N.A.,
Civil Action No. V-12-11, 2012 WL 2065377, at *9 (S.D. Tex. June 6,
Plaintiffs have alleged no such tender
and are therefore not entitled to declaratory relief.
Plaintiffs seek injunctive relief to prevent enforcement of a
state court Final Judgment and Writ of Possession.
Rocker-Feldman doctrine, "federal district courts lack jurisdiction
to entertain collateral attacks on state court judgments."
v. Texas Capital Bank N.A., 660 F.3d 900, 904 (5th Cir. 2011).
state court judgment is attacked for purposes of Rocker-Feldman
losing party in a
state court action seeks
substance would be appellate review of the state judgment."
(citing Johnson v. De Grandy, 114 S. Ct. 2647, 2654 (1994).
court cannot review the state court's determination of the right to
Plaintiffs' Complaint, Docket Entry No. 1, p. 1
Nor can it enjoin enforcement of the Writ of
Possession before the relevant claims are decided.
See Knoles v.
Wells Fargo Bank, N.A., 513 F. App'x 414, 416 (5th Cir. 2013)
relief sought, in practical effect, would enjoin Wells Fargo from
enforcing a valid extant judgment of a Texas court.
This court therefore
cannot grant injunctive relief.
cause of action for breach of contract
judgment on attorney's fees would be premature.
The court will address Plaintiffs' request for attorney's fees at
the appropriate time.
For the reasons
Conclusions and Order
the court concludes that
Plaintiffs have pleaded legally cognizable claims for breach of
contract or, in the alternative, promissory estoppel.
injunctive relief are DISMISSED without prejudice.
Motion to Dismiss
(Docket Entry No.
is therefore GRANTED in
part and DENIED in part.
It is the court's normal practice, as has been explained to
counsel for Wells Fargo, to allow only one dispositive motion per
party, and the court sees no legitimate reason to make an exception
in this case.
therefore be no
motions by the Defendant.
Because the court has ruled on the pending Motion to Dismiss,
the court's Order Granting Unopposed Motion to Stay (Docket Entry
No. 19) is LIFTED.
The discovery cut-off is extended to April 14,
The joint pretrial order is due May 5, 2017, and docket call
will be held on May 12, 2017, at 3:00 p.m.
SIGNED at Houston, Texas, on this 4th day of January, 2017.
UNITED STATES DISTRICT JUDGE
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